Protecting Your Reputation in the New Year: a Healthcare Provider’s Guide to choosing Counsel.
By M. Dylan McClelland*
Perhaps you are an Out of Network physician, maybe a surgeon? Or you run a surgery center or hospital. Odds are that you refer your patients to and advise them to seek out not only the most knowledgeable and talented professionals, but also those with the best reputations? In healthcare, specialty knowledge and capabilities reign supreme. No one refers a patient with a terminal brain tumor to a family physician, no matter who talented the family physician. But even more so, no sensible provider refers a patient to a surgeon known for operating while intoxicated, or a facility known for rampant MRSA infections. How many top-flight, “star” physicians choose to work at such locations or with such notorious professionals? Now at the dawn of a new year full of possibilities, it’s time for healthcare providers to ask “do I choose my lawyer with the same degree of care and responsibility as I do my patients’ referrals?”
This article hopes to guide providers in choosing appropriate counsel. But your first question may be “Why should I care; aren’t all lawyers bottom-feeding scum of the same ilk?” Yes, we are.:) But we are not all of the same skill and reputation. The Untied States government concluded 2015 with several notable healthcare fraud cases, criminally charging providers with healthcare fraud. See e.g. http://oig.hhs.gov/newsroom/news-releases/2015/sarfall2015.asp; or http://www.justice.gov/usao-nj/pr/new-york-health-care-professional-sentenced-prison-another-pleads-guilty-connection-test The stakes have never been higher for providers in America.
Unfortunately, unlike medicine where board certification can attest to a provider’s specialization and at least competency, the number of “healthcare” lawyers in the United States probably exceeds the number of providers, particularly in the years since the passage of the Affordable Care Act. Not all are built the same; not all provide their clients with the conscientiousness required. Beyond the customary questions concerning experience and results, here are some helpful questions to ask in choosing your healthcare counsel.
- Do you want to be my lawyer? Lawyers in private practice run businesses, subject to the same incentives and detriments as any other. Most lawyers take cases to pay the bills without reference to the underlying relationship. “Yes, I’ll represent you,” is not the same as “I’d like to be your lawyer.” Ideally, you want an attorney with the neutral dispassion to advise you well, but who is invested in your relationship. A lawyer who sees your issues as an ongoing relationship is your best asset – unlikely to overbill, unlikely to recommend actions not in your best interests. Key Question – Can I have your cell phone number? No client calls his/her lawyer to speak to the receptionist. In a busy world, you will likely call your lawyer only when you need him or her. Will you reach your lawyer, his receptionist, his associate or paralegal, or his voicemail, when you need him? If you ever take call at night or on weekends, shouldn’t you have a lawyer who will do the same?
- What is your strategy concerning litigation? In many cases, particularly reimbursement suits over claims by Out Of Network providers, a providers’ bills, charting and coding procedures, and contracts are at issue. You may wish to keep these documents confidential, but by litigating your claim, you place them at issue. Will your lawyer play games in discovery to avoid producing these things? If the answer is yes, hit the brakes and think. Many providers are surprised when they begin to litigate a reimbursement claim and the payer countersues for overpayment or fraud. If you retain a lawyer with a history of playing these games, trying to conceal the un-concealable, you should expect to raise the suspicion of the payer. If you are one of the 99% of providers who participate in the Medicare or Medicaid programs, the payer is often using federal dollars and, hence, you raise the specter of False Claims Act violations. Too many lawyers use these “tough guy tactics” to convince providers to hire them. But are you really wiling to put your own criminal and civil liability at issue to service your lawyer’s ego or marketing plan? Moreover, do you want the reputation of using a lawyer known for assisting the cheats in the system?
- Alternative billing arrangements. Every lawyer on Earth is willing to take every case on an hourly basis. But is your lawyer willing to, in the appropriate cases, consider alternative arrangements? For example, will the lawyer do a reimbursement case on a contingency basis, or on an hourly plus bonus fee structure? Note this goes back to the first question you should ask, is the lawyer building a relationship with you. You are willing to bet your practice on your services and fees, is your counsel willing to similarly trust you?
- ERISA. An increasing amount of healthcare coverage is insured through employer health plans. This typically triggers the federal ERISA law. ERISA litigation is similar to many reimbursement cases, but contains landmines for the unfamiliar practitioner. Particularly in the areas of administrative appeals and exhaustion of remedies, assignability of claims, and preemption, ERISA can be a tough hurdle to climb. Ask your lawyer about his experience in ERISA. A healthcare lawyer with insufficient ERSA experience should not be ruled out for all purposes, but it’s not where you send your ERISA claims.
- False assurances of compliance. Beware the attorney who tells you they can make your practice 100% compliant. Such a claim is made by a salesman hustling your business, a fool, or both. Healthcare is probably the most regulated industry in the country. HIPAA, ERISA, ACA, ERISA, FCA. These are just a few of the federal laws governing healthcare. Add in state managed care and provider licensing laws to name but two and state and federal regulations, you have millions of pages of mandates, restrictions and pre-conditions. No lawyer, including one specializing in healthcare law, can know all of them with sufficient expertise. The treatises summarizing just one of these bodies of laws arte often so long as to be unreadable. The only 100% compliant healthcare entity is one that’s out of business or soon to be. What you should be looking for is a healthcare lawyer who will keep you from stepping on the most common and largest landmines, and who can mitigate the impact of the occasional misstep.
2016 is a new year, a perfect time for new choices. Your reputation is the only thing you own which, once given away, cannot be reclaimed. As a provider, you have earned a skill deserving of respect and fairness. Make sure your counsel is equally committed to ensuring your integrity.
* M. Dylan McClelland is the President of McClelland Advocacy, a Sacramento-based law firm with expertise in healthcare litigation public policy and Constitutional litigation and challenges to state and local government actions. He regularly represents healthcare providers, managed care groups, and physicians and facilities including hospitals and Ambulatory Surgery Centers.